This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

Spring 2011

Protections against discrimination in the workplace on the basis of sexual orientation and gender identity often flow together. For example, Oregon's Equality Act and Washington's Law Against Discrimination both include the term "gender identity" within their definitions of "sexual orientation."

Are these classifications merely alternative ways of saying the same thing? In a word, no.

While sexual orientation and gender identity may overlap, the two classifications are distinctly different. As a result, a one-size-fits-all approach to updating employee handbooks and internal policies may be insufficient to comply with the law.

What exactly is the difference between sexual orientation and gender identity and why are these categories often combined? Sexual orientation focuses on whom a person is attracted to: someone of the same sex, opposite sex, both, or neither. Gender identity focuses on how one identifies oneself with the gender traditionally associated with one's sex at birth.

For example, Washington defines gender identity as "having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth." Oregon describes gender identity as one's "appearance, expression or behavior" regardless of whether it "differs from that traditionally associated with the individual's sex at birth." The way one dresses and acts is often an outgrowth of one's gender identity. This is known as "gender expression."

The two classifications are easily confused due to the predominant belief that a person who dresses and acts in a manner traditionally associated with the opposite sex must also be a member of a sexual minority, but that is not always true. For example, a female who has a short haircut and wears a suit and tie expresses a masculine appearance, but she may still be attracted to males. Alternatively, a male who wears skirts and high heels expresses a feminine identity but may in fact be attracted to females.

Though the distinction between sexual orientation and gender identity may be confusing, this distinction is important to understand because both classifications are protected under state laws.

Currently, thirteen states and more than a hundred cities and counties prohibit discrimination on the basis of gender identity or expression. Nine of those thirteen states added such protections just within the last six years. Another thirteen states, including Florida, Kansas, and Texas, introduced bills in 2009 that would prohibit discrimination on the basis of gender identity in employment. Furthermore, last month, Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Tom Harkin (D-IA), and Susan Collins (R-ME) introduced the Employment Non-Discrimination Act (ENDA) to prohibit discrimination based on sexual orientation and gender identity at the federal level.

What can employers do to ensure that their policies adequately address gender identity?

Update employee handbooks and diversity training materials to include gender identity. Also, explain the difference between sexual orientation and gender identity in these materials.

Provide guidance within these policies to help relieve some of the tension surrounding gender nonconformity. For example, some employees feel awkward when addressing a person who acts or dresses differently from that person's traditional gender role. Relieve the tension by encouraging employees to ask, "Which pronoun do you prefer?"

Communicate nondiscrimination policies to all employees. State whom the policies affect, what the terms mean, and why these policies are important to your organization.

Currently, more than 85 percent of Fortune 500 companies nationwide extend workplace protections based on sexual orientation and more than one-third on the basis of gender identity. With Washington and Oregon in the forefront of legislative action and the federal government not far behind, now is the time for employers to consider modifying their policies to join those companies.